PATRIOTS AVENGERS ASSEMBLE

Hahahahaha I hope Deflategate never ends. I still remember when it first happened and all I gave it was a brief blurb saying “it’s probably nothing and it’ll blow over” and now it’s possibly the longest story ever. I wonder if some irony god is doing this simply to taunt me. At this point I don’t even care if Tom Brady and the Patriots win or lose, I just never want it to stop. I can’t get tired of watching Goodell act like a petulant baby about a non-issue and I can’t get tired of mocking the cult of Brady as they freak the hell out about it. It’s the gift that will hopefully never stop giving. I want it in the Supreme Court.

Selfish desires to continue trolling Pats fans aside, seriously how is this still a story? When Brady won the previous appeal complete with an epic slam-down by the judge on the NFL, I figured that was it and the appeal Goodell filed afterward was simply the final gasp of a dead man, a mere formality. THEN HE WON! WHAT? HAHAHA HOW DID HE WIN?! Seriously how did he win? Now we are in a situation where Brady has an even lower chance of winning yet another round of court battles and we may very likely have a Brady-less 4 games to start the year. For the schedule nuts, that’s against Arizona, Miami, Houston, and Buffalo, a fairly modest slate. With Janeane Garafolo under center they probably win two of those. I think the Bills or Texans could steal a win and Arizona is probably now a favorite.

ANYWAY, HAVE ANOTHER PODCAST! For those of you KSK readers we got Spilly (he of the April Fools comics) to join us. And we finally have a title. But you gotta listen to find it out. But you should listen anyway because we spend 10 minutes laughing at dumb Patriots fan facebook comments!

Discussion (32) ¬

“When Brady won the previous appeal complete with an epic slam-down by the judge on the NFL, I figured that was it and the appeal Goodell filed afterward was simply the final gasp of a dead man, a mere formality. THEN HE WON! WHAT? HAHAHA HOW DID HE WIN?! Seriously how did he win?”

As I understand it, the logic behind the ruling in this appeal is that, while the morality of asking your employees to sign away their rights and agree to your kangaroo court where you’re allowed to give disproportionate punishment, and the wisdom of agreeing to give your employer such power, are questionable at-best, it’s not illegal. So, while the NFL probably does have too much power to be judge, jury, and executioner, and Brady probably is being disproportionately made an example of, and the Wells Report probably was ridiculously biased, strictly speaking there’s nothing illegal about it, because the NFLPA, and therefore Tom Brady, agreed to give Goodell ultimate authority in the CBA.

In other words, this is the defense I expected the NFL to use that I thought would be a slam-dunk way back when I said Brady doesn’t have a prayer before being proven wrong at first. “It doesn’t matter whether people think what we’re doing is morally righteous or not, because this is a court of law, and we’re doing nothing illegal, because the NFLPA agreed to this.”

Now the question is whether this goes to the SCOTUS, where a Pro-Brady ruling could give the NFLPA an excuse to atone for their mistakes by tearing up a then-illegal CBA, and more importantly, set a precedent that extends far beyond football that employers aren’t allowed to ask their employees or employee unions to give up their right to a trial and be subject entirely to a subjective internal arbitration panel.

On that note, be ready for another NFL strike whenever this CBA ends, either by new legal precedent or by it just expiring in 2021. This strike will probably eat into the actual season, especially if there are any more high-profile incidents like this between now and then.

Your comment about the possible precedent set by letting the SCOTUS rule on this case is exactly why it’ll never go that far. I don’t think the SCOTUS would take a case like this with that type of aftermath, or possible precedent being set.

On the other hand, wouldn’t it be hilarious if Goodell being a total douche baggie was the reason workers rights were improved? And Tom Brady is part of a national workers rights ruling? Forever? Boston would literally evaporate with love for him. He’d be like the patron saint of union workers. There’d be s statue of him in front of every union office.

I mean, setting broad, important, potentially-controversial precedents is one of the most important things the SCOTUS does. Snyder v. Phelps established that the 1st amendment protects offensive, hateful speech, United States v. Windsor established that DOMA was unconstitutional and gay people should be allowed to be married in all 50 states, Assoc. for Molecular Pathology v. Myriad Genetics established that DNA can’t be patented, Brown v. Entertainment Merch. Assoc. broadened the definition of speech protected as art to include video games and other digital content, and that’s just in the last three terms. They’re fine setting precedent on landmark cases that have wide-reaching implications.

One of the most beautiful ironies would be if evil iron-fisted Goodell’s lust for punishment and disregard for the wellbeing of his employees compared to the success of his organization created a precedent that enhanced the rights of workers. It’s also the big reason that I’m officially on board the Brady side of this case now; A place I used to work recently forced all its employees to agree to waive their rights to sue in the event of wrongdoing and accept whatever judgement an internal panel decided on. If they didn’t agree, they were let go at the end of the month. In the grand scheme of things, four games Tom Brady sits out is inconsequential in the grand scheme of things, but this precedent could make the lives of millions of people better.

Plus there’s never too much egg on Goodell’s face. Watching him fumble over and over again is more fun than watching A-Rod strike out.

this case should have been over after the first Federal Court hearing.

Its really ridiculous how the Majority opinion of the judges was basically “He cheated and therefore has to submit to Goodell’s unlimited authority under the CBA” while the Dissenting Opinion was basically “Doesn’t matter if he cheated or not the question is: Has Goodell been fair and consistent with his punishments? The answer is clearly no.”

The courts weren’t tasked with determining whether the punishment was appropriate, it was merely a question of whether or not the Commissioner was acting within his rights, which he was. It’s a ridiculous punishment, and I say that as a hardcore #hater of the Patriots who believes that it was absolutely an intentional act on behalf of Brady, but Goodell was acting within his rights as Commish is passing it down.

Oh I agree it isn’t if Brady Cheated, it isn’t if Goodell was is fair (considering unlimited power)its about consistently handing down similar punishments for similar violations. Which I think we all know isn’t something Goodell is good at.

Although I agree the Majority opinion was flawed and misrepresented numerous arguments made by the NFLPA, their actual stance was more akin to saying, “We are not responsible for determining whether or not Goodell’s response was appropriate; it is not our job to judge the arbitrator decided by the contract,” whereas the Dissenting Opinion took the opposite stance. Now, I think they did disagree on the circumstances of the case in question, but their representation of the legal opinions basically took those forms.

It isn’t the court’s job to determine if the punishment is fair or not. As long as it is not out-right-illegal, they have no footing to intervene on a legal basis *BECAUSE* this was a power *explicitly agreed to* by the CBA. It was collectively bargained for by the player’s union. If this had been a condition of contract with *no* union, there might actually be a case, as this kind of power is generally seen as unethical and depriving an employee of a fair hearing. But, player’s union *AGREED TO THIS*. I have NO clue what they could have received in return that made them accept this, but I’m fairly sure that DeMaurice Smith needs to not be part of this any more. He is legitimately the only person involved that I dislike more than Goodell, and he’s an even bigger part of the problem, which is saying a LOT, since I believe Goodell is the worst commissioner certainly in Football history, and I think arguably in the history of American professional sports.

But fundamentally, this is a question of contract law and the majority opinion is legally correct: The NFLPA agreed to this, and over-riding this would screw general contract law over so hard, it would literally undermine our legal system. It would move from giving people the ability to agree to things and have the courts enforce that (the foundational principle of *ALL* law), to people deciding that the contract doesn’t matter if they can find a sympathetic judge. What the NFLPA is asking for should frankly terrify *everyone*, whether you think Goodell is a vile cretin (and you should, at least about his performance as Commissioner) or not. They are asking for literally every collectively bargained (with lawyers in tow) contract that has ever been made to be nullified if *EITHER* side later regrets part of their decision. Really let that sink in: the NFLPA isn’t arguing for Brady and against Goodell, they are arguing against the fundamental basis of all Contract Law, that people (and particularly lawyers), are rational and sound-enough-of-mind to determine their own interests, to enter into agreements with each other, and to expect those agreements to be honored. Presumably the NFLPA received *some* consideration for this broad power they gave Goodell, or they would not have agreed to it. It’s not the court’s job to determine if that consideration was of equal value or not.

They weren’t swindled. They weren’t compelled. They agreed, in good faith. With sound minds, with legal counsel, as a Union. They *AGREED* to this. There is *NO* legal foundation, and the court’s initial ruling at a lower level was disgusting. He didn’t rule based on the law, he ruled based on fairness, which frankly the law isn’t supposed to be about. I don’t want a judge deciding that the car I bought for $15,000 is actually worth $40,000, so that’s what I have to pay, nor do I want a judge to decide that the car I sold for $15,000 is actually worth $5,000, so that’s all I’m entitled to. That is what is fundamentally at question, and the fact that there was a dissenting opinion saddens and horrifies me.

In the grand scheme of things, Goodell’s power in player discipline is really a low priority for the NFLPA. It really only affects like two or three players a year. The real things they wanted, which affects everyone, was stuff like better healthcare, lighter practices, the salary floor, higher minimum wage, etc.

I’m so sick of deflate-gate at this point, so I will talk about something completely different; superheroes. In 2014 (their super bowl year) I came up with the best superhero monikers for most of the relevant patriots players to form their own avengers like team… Tom Brady of course would be Captain Patriot (see Captain America only even better looking than Chris Evans) Gronk would be “The Incredible Gronk” (obviously hulk) Edelman would be “Squirrel Man” (from his self given nickname “Squirrely”, and squirrel-girl) Shane Vareen would be Wol-Vareen (an actual nickname of his) Lafell would be known as “Stone Hand” (think iron fist, you know, since Lafell can’t catch shit with those frying pan mitts of his…) Revis would be “The Islander” (because Revis-island) Wilfork would be “Whole-Lotta man” (blob reference, as Wilfork is an immovable object) there were more that I can’t remember right now, but it’s always fun/silly to think of your favorite football players as superheroes or something like that…

Another interesting point about the Patriots QB room; there was a point in the 2014 preseason (after drafting Goroppolo) that the patriots were considering having a 3rd QB on the roster. Of course we all know they tried out Tebow for a couple weeks to no avail, but there was a rumor that the Pats were considering picking up Brady Quinn. Though this never came to be, if they had between Brady Goroppolo and Quinn the Pats would probably have had the handsomest QB room the NFL has ever seen without exception… 😛

I am an attorney and a good buddy of mine is partner at a labor and employment litigation firm (representing employers, because that’s where the money is!). When the district court first overturned the NFL’s punishment, we were both surprised, but he said immediately “this will get slapped down so hard on appeal.” Turns out he was right.

The appellate decision had nothing to do with the investigation or the case; it was merely procedural. There is a strong policy in favor of arbitration and other forms of alternative dispute resolution (or ADR). When employees agree (especially after collectively bargaining) to have have employment disputes resolved via arbitration, the courts are supposed to do nothing but enforce what the arbitrator decided (absent something patently unfair or illegal). Had the Second Circuit affirmed the lower court, it would have opened the floodgates for aggrieved losers at arbitration to get another bite at the apple in court, which is precisely what the ADR regime is designed to avoid. It would have undermined the entire arbitration concept (leaving for another day whether that would be a good outcome or not).

The appeals court really had no choice from the beginning except to correct the district court and let Goodell’s decision stand. And remember, he didn’t impose the original punishment, so his decision as the arbitrator wasn’t merely affirming his own decisions.

It was interesting as it was happening but once Deion Sanders interviewed Laremy Tunsil after he was picked I think it was over. Laremy said that video was several years old and he seemed so well spoken and mature about it all. I believe Miami got a great player (with a d!ckhead step-father) at #13.

I don’t see why Brady and/or the NFLPA are bothering with this, let alone hiring someone who is probably one of the most expensive guns in the appellate counsel business. SCOTUS loves loves loves loves enforcing arbitration clauses, especially ones signed between two parties with relatively equal bargaining power. Conception v. ATT was troublesome because it involved a class action waiver signed as a part of a form contract by millions of small fry cell phone customers which made it basically impossible for those customers to sue – that’s a textbook case of unequal bargaining power and the court still upheld the waiver 5-4. Brady doesn’t stand an f-ing chance here, and if he dicks around too long he’ll be forced to sit out four games that would be much harder for the Patriots to win without him than the four at the beginning of this year’s slate. I’m a Pats fan but I’m also an attorney, and in my professional (albeit entirely unsolicited) opinion, I think Brady should just take the sack and move on. Arbitration clauses are not entirely unlike prostitution, but I’m not entirely sure how much sympathy people have for a prostitute who is paid eight figures annually before taxes, i.e., if there’s ever a situation where an arb clause is perfectly reasonable, it’s a major league sports player contract.